Purani Ashokkumar ... vs State Of Gujarat
2022 Latest Caselaw 4891 Guj

     C/SCA/9725/2022                               ORDER DATED: 20/05/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9725 of 2022

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                 PURANI ASHOKKUMAR PARSHOTTAMBHAI
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR PA JADEJA(3726) for the Petitioner(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,
132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,
149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1
65,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,18
1,182,183,184,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37
,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60
,61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,8
4,85,86,87,88,89,9,90,91,92,93,94,95,96,97,98,99
 for the Respondent(s) No. 2,3
MR. SHIVAM DIXIT, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 20/05/2022
                             ORAL ORDER

1. Rule returnable forthwith. Learned AGP waives service of notice of rule on behalf of respondent State.

2. Heard learned advocates for the parties.

3. It is the case of learned counsel for the petitioners that the case of the petitioners is similarly situated to the petitioners of Special Civil Application No. 12537 of 2011. Learned counsel for the petitioners would submit that the petitioners are entitled to the similar benefits as have been directed by the court in the order dated 23.01.2019 in para 8.1. He would submit that a direction can be given to the

C/SCA/9725/2022 ORDER DATED: 20/05/2022

respondents to extend similar consequential benefits to the petitioners herein.

4. This court vide order dated 25.07.2018 passed in Special Civil Application No. 12537 of 2011 in case of employees like the petitioners who prayed for a direction to regularize their services and treat them at par with similarly situated persons and grant them regularization from the date of their initial appointments as Multi-purpose Health Workers (Male) with consequential and incidental benefits held as under:

7. It is admitted that initially, petitioners were given contractual

appointment for 11 months and thereafter, they have been

continued for all these years. Some of these petitioners have joined

way back in the year 2004 and 2005 and working on fixed

remuneration of Rs.2500/-. The main ground of the respondents in

denying the regular appointment to the petitioners and

terminating their services is that initial appointment was on

contractual basis.

8. This Court is of the considered opinion that such stand of the

State Government in terminating the services of the petitioners,

despite the fact that, petition of similarly situated other petitioners

was allowed way back in the year 2011 and 2016. In these

proceedings, respondents were party and decision was in the

knowledge of the respondents. Case of the petitioners for

increasing of remuneration from Rs.2500/- to Rs.9400/- was

forwarded by Health and Family Welfare Department for

consideration to the Finance Department. Finance Department in

place of taking decision in favour of the employees have passed an

order vide which the District Panchayats have been directed to

terminate the services of the petitioners who have been working

for considerable long time.

C/SCA/9725/2022 ORDER DATED: 20/05/2022

9. While disposing of Special Civil Application No.6289 of 2011,

this Court has held as under.

25. It may be true that in the case of District Rajkot,

similarly situated MPHW(M) have been regularized by the

concerned District Panchayat. However, it is obvious that in

the case of Sabarkantha District Panchayat, the services of

MPHW (M), who are identically situated to the petitioners,

have been regularized, with restrospective effect, by the

State Government, itself. The State Government has taken a

policy decision in this regard, confined only to the MPHW

(M) of Sabarkantha District. Why all similarly situated

MPHW (M) in other Districts of the State have not been

covered under a uniform policy, is certainly baffling. Multi

Purpose Health Worker (Male) such as petitioners, who

were appointed on adhoc basis but have been denied the

fruits of regular appointment only because the regular

selection process was not fhled until they had crossed the

permissible age-limit, from a distinct class of employees.

Different categories in a single class cannot be carved out

by taking piecemeal decisions benefiting only a section of

such employees. This would amount to sub-classification

that would not be permissible in law, as there is no rational

nexus to the object sought to be achieved by confirming the

decision only to MPHW (M) in Rajkot and Sabarkantha

districts. They, therefore, cannot be accorded

discriminatory treatment. The respondent authorities are

not only trying to take advantage of the situation but are

also trying to put the blame on each other which cannot be

permitted, to the detriment of the petitioners.

10. From the aforementioned judgment, it is clear that Multi

C/SCA/9725/2022 ORDER DATED: 20/05/2022

Purpose Health Worker (Male) who have worked continuously for

so many years cannot be discriminated by taking one excuse or the

other. There is no rationale in discriminating the present

petitioners by treating them as employees on contractual basis

when initial contract for which they were appointed is over after

11 months and thereafter, without any break, they are continued

for all these years. This is particularly so, when clear cut finding

has been recorded by co-ordinate Bench of this Court in Special

Civil Application No.6289 of 2011 and respondents were party in

these proceedings.

11. As a result of aforementioned discussion, termination order

dated 6.1.2018 is quashed and set aside and this petition is

allowed in the same terms as Special Civil Application No.6289 of

2011 decided on 10th August, 2016. Petitioners will be regularized

in the same manner from the same date as in the aforementioned

oral order. Rule is made absolute.

5. Further, a co-ordinate bench of this court in Special Civil Application No. 2207 of 2014, relying on the aforesaid decision, considering the submissions of the respective parties held as under vide order dated 23.01.2019:

" 7. Having heard learned advocates appearing for the parties and

having gone through the material on record, the Court found that

respondents have not been able to point out any dissimilarity or

discriminatory feature than what has been decided by coordinate

Bench of this Court and, therefore, with limited scope of an issue,

the Court found that the case is made out by the petitioner. While

arriving at this conclusion, the Court is considering the observations

which have been made by a decision in case of Special Civil

Application No.6289 of 2011 reported in case as referred above

[J.N.Jagani vs. State of Gujarat reported in 2016 (0) AIJEL - HC

C/SCA/9725/2022 ORDER DATED: 20/05/2022

236643], the relevant paras contained therein are reproduced

hereinafter.

"26. It is a settled position of law, that does not require any

further elaboration, that equals are required to be treated

equally and dissimilar treatment cannot be accorded to the

same class of people.

27. The action of the respondent authorities in not regularizing

the services of the petitioners, as has been done in the case of

other similarly situated MPHW(M) by the concerned District

Panchayats and the State Government in Sabarkantha District,

is not only arbitrary but also discriminatory and unjust and is,

therefore, in violation of Article 14 of the Constitution of India.

The petitioners are being deprived of the fruits of

regularization in spite of having worked continuously for a

period of about twentyfive years, or more. As such, the action

of the respondents is also in violation of the provision of

Articles 16 and 21 of the Constitution of India.

31. In the present case as well, the action of the respondents

District Panchayat as well as the State Government is required

to be tested on the principle of reasonableness in executive

action. In the view of this Court, the action of respondent No.3

in not issuing the advertisement for the regular selection

procedure expeditiously, especially after imposing a condition

in the appointment orders of the petitioners that they have to

undergo the regular selection process and then not conducting

the selection process for years together until the petitioners

cross the permissible agelimit, is highly unreasonable.

Respondent No.3 bided time for a period of six years before

initiating the regular selection process ensuring, by this action

that the petitioners become agebarred in the meanwhile. The

C/SCA/9725/2022 ORDER DATED: 20/05/2022

initiation of the selection process was not in the hands of the

petitioners and they cannot be blamed for the plight they find

themselves in.

33. As held by this Court in the above judgment, aging is a

process which nobody can stop. This aspect ought to have

been considered by respondent No.3 while including Condition

No.10 in the appointment orders of the petitioners and while

issuing the advertisement for regular selection in the year

1996. It was not in the hands of the petitioners to have

stopped the clock from running. However, it was very much in

the hands of respondent No.3 to have held the selection

process well in time, so that persons such as the petitioners,

who have been appointed by it subject to the condition that

they would have to participate in the regular selection

process, would have got a fair chance. The petitioners cannot

be made to suffer for the totally unconcerned and casual

approach on the part of the District Panchayat.

34. At the same time, the Court cannot overlook the fact that

the State Government is supposed to be a model employer. It

would have behoved the State Government to have framed a

uniform policy for MPHW(M) such as the petitioners, covering

the entire State of Gujarat, instead of confining the decision

only to those MPHW(M) working in Sabarkantha District, as

has been done vide the order dated 13.10.2009. This would

have ensured equal treatment to all similarly situated

MPHW(M) throughout the State, irrespective of the District in

which they are working. The fact that a decision has not been

taken for all MPHW(M) but only for those working in a

particular District, has caused a great deal of anguish and

heartburning to the petitioners, which is quite understandable,

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considering that they have been discriminated for no fault of

their own.

35. As a result of the above discussion and for the aforestated

reasons, this Court is of the view that the petitioners deserve

to be granted the benefits of regularization with retrospective

effect, as have been granted by the order dated 13.10.2009,

passed by the State Government in the case of similarly

situated persons in Sabarkantha District."

8. The Court also found that similar observations have been

considered by yet another coordinate Bench in a decision

delivered on 25.07.2018 in Special Civil Application No.12537 of 2011. The Court is also taking note of said decision while

coming to this conclusion in the present case on hand. From the

aforesaid observations and in view of the fact that here also the

petitioner is a Multipurpose Health Worker (Male) and the

dissimilarity is not reflecting at all, the case is made out by the

petitioner for seeking the benefit of regularisation with

retrospective effect. Accordingly following order would meet

the end of justice while disposing of the petition.

8.1 The respondents are directed to consider the case of

petitioner for regularisation of their services from the initial

date of appointment as has been done in similarly situated

cases with all consequential benefits and the needful to be done

by the concerned authorities within a period of three months

from the date of receipt of this Court.

9. With the above observation and direction, petition stands

allowed, with no order as to costs."

C/SCA/9725/2022 ORDER DATED: 20/05/2022

6. Accordingly, the respondents are directed to consider the case of the petitioners for their entitlement to regular payscale on the post of Multi-purpose Health Workers (Male) from their original date of appointment and consequential benefits which have been paid to the similarly situated employees namely petitioners of Special Civil Applications No. 12537 of 2011 and 2207 of 2014. The petitioners shall be granted such benefits as referred to hereinabove within a period of ten weeks from the date of receipt of the writ of the order of this court. Petitions are accordingly allowed. Rule is made absolute. Direct service is permitted.

(SANDEEP N. BHATT,J) SLOCK BAROT